CRI/APN/81/2005
IN THE HIGH COURT OF LESOTHO
In the matter between:
MOILOA KHOBAI - lST Applicant
LEJONE MORAISANE - 2nd Applicant
KOKOSI LEFISA - 3RD Applicant
VS
HIS WORSHIP MR MURENZI - 1ST Respondent
OFFICER COMMANDING LERIBE PRISONS - 2nd Respondent
THE DIRECTOR OF PUBLIC PROSECUTIONS - 3rd Respondent
RULING
Delivered by the Honourable Mrs Acting Justice Mahase on the 20th day of June 2005
Applicants were charged and convicted before a Magistrate in the Leribe district. They were sentenced to two years imprisonment each, without an option of a fine. They had tendered pleas of guilty.
They were charged with having committed the crime of robbery. They are alleged to have robbed from the shop of one Lebohang Mothibeli. Briefly the facts are as follows:
Lebohang Mothibeli who owns a shop at Ha Rampai near Lejone in the Leribe district has hired one Tseliso Machabe as a sales clerk.
That the said1 clerk stays and sleeps in that shop.
On the day in question while he was sleeping some people broke into that shop. Had him covered with a bag on his head and face. They also felled him down and tied him with a ..... wire on his hands, thereby rendering him helpless and was unable to raise an alarm. The said people then took away the stock in the shop and left with it. They left the clerk still tied on his hands. He tried in vain to free himself.
He remained in that position until in the morning when a passerby realized that the door to the shop had been closed, tied up with a wire so that it was not possible to open it from inside. He raised an alarm and villagers came to the safety of that Sales Clerk. The incident was reported to the owner of the shop, the chief and the Lejone Police. One trooper Khanyapa investigated this case.
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He went to the accused who were already in police custody, having been arrested for different cases. After having cautioned the accused, they gave explanations. Following that explanation, the police seized certain items which were found upon the accused when the police were investigating other cases against the accused. The items which were then found upon the accused were a wallet containing the sum of M200.00 some cigarette including 10 packets of peterstyvesant, a blue bag, some 13 packets of peanuts. A further explanation by the accused revealed that some items had been utilized.
These found items were later identified by the complaint, in the presence of the police and the accused as being part of the items stolen from the shop of Lebohang Mothibeli.
They were seized and kept as exhibits. They have been marked exhibit 1 collectively.
The said Tseliso had sustained injuries during the robbery at the said shop. He was treated by a medical doctor at 'Mamohau Hospital. The medical report, exhibit A was compiled and later handed into Court as an exhibit. He was treated as an outpatient.
All the accused have no previous convictions. As has already been indicated above, they were each sentenced to imprisonment for a prison of two (2) years without an option of a fine.
The accused have all applied for a review of their case.
Their application has been filed on urgent basis in terms of the provisions of Rule 8 (22) of the High Court Rules. This was filed on behalf of the accused by Mr Thabo Nteso.
I must at the outset, indicate that I see no reason why this application was filed on urgent basis.
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There is no urgency at all in a situation where one has been convicted and sentenced, correctly in my observation by a properly and lawfully constituted court.
The fact that one has been deprived his/her liberty following ones incarceration in prison after being sentenced by a court of law is not and can never be a matter of urgency.
This application was filed five (5) months after the conviction and sentence of the applicants by the Magistrate's Court in Leribe.
Applicants even had to apply for condonation of the late filing of the application. How then do they claim that the matter is urgent
when they filed this present application so late since their conviction and sentence?
This constitutes a gross abuse of the court's process. This is going on unabaded despite numerous warnings and reprimand by this Court and the Court of Appeal in numerous decisions. This is becoming a matter for great concern.
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The crown should have addressed this issue by strongly opposing same. Unfortunately it has not seen it fit to do so. In a nutshell and as argued on their heads of argument, the applicants argue that the 1st Respondent denied to give them an option of a fine because "they had previous convictions."
However, the public prosecutor had informed the court that the applicants had no previous convictions. Their concern is that they wonder where and how the 1st Respondent got the information that Applicants were "off record from Prison."
I must hasten to say that there is nowhere in the reason s for sentence on this record where the learned Magistrate (1st Respondent) has written that he imposed that sentence upon the applicants herein because they have previous convictions.
The words, "off record," would in my view best be interpreted to mean that the 1st respondent has not taken that fact into consideration, and nothing else.
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The applicants could have been in prison awaiting trial not necessarily because they had been convicted. Why then should one feel that the said words mean previous convictions and nothing else, especially after the Public Prosecutor had just informed court that the accused have no previous convictions? With respect there is no reason suggested for the magistrate to have illegally acquired any information prejudicial to the accused. I find indeed that there are no reasons for the magistrate to have done that, he would not even have the time nor the skill to do so.
The learned magistrate has clearly written down his reasons for sentence. They are good and correct reasons in the view of this court. All the matters taken into consideration in imposing this sentence upon the applicants herein are proper.
The applicants also say that the 1st respondent has not advised them about their constitutional right to bail.
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Indeed the record of proceedings only indicates that the accused/applicants were only advised of their light to legal representation. The question here is whether or not the accused/applicants have suffered prejudice merely because they have not been so advised about their constitutional right to bail.
In the instant case the applicants' case was reported to the Leribe Magistrate's Court on the 9th September 2004. It was then prosecuted
and disposed off on the same day because the applicants tendered a plea of guilty.
The applicants' case was not postponed at all to another date i.e they were never remanded to goal to await trial on a future date. There was therefore no need for them to apply for release on bail. They were tried and sentenced on that very day that their case was reported and registered in court. There was never no need for them to apply for release on bail. Can it be said that in the circumstances of this case they have suffered any prejudice for not being so informed?
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The right to apply and to actually be granted bail is not there for the taking. Good reasons must exist why one should so apply. One does not automatically apply for release on bail even where ones case is presented and finally disposed off on the day that it is first reported to court. It is equally the accused's constitutional right that where circumstances permit, ones case should be disposed off within a reasonable time. This is also in keeping with the provisions of the Speedy Courts Trial Act.
The Leribe Magistrate's Court should be congratulated for having not unnecessarily remanded the accused to jail pending trial even where there was no need to do so.
Applicants would have suffered prejudice had the court remanded them into custody to await trial even where police investigations were complete and the case was ready to be prosecuted. The applicants also pleaded guilty to the charge. There was therefore no need to remand them into custody, in which case they would probably have applied for release on
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bail. Had that been the case, then they would rightly claim that they were prejudiced as they would not have exercised the right to apply for release on bail, since they would not have been informed of same. In the circumstances of this case, the applicants have not proved that they have suffered any prejudice. I accordingly decline to uphold their complaint in this regard.
The complainants also allege that the medical report, exhibit A was irregularly handed in as evidence in the instant proceedings. That its contents were never even read nor explained to them.
They have not said in what regard the handing of exhibit "A" has prejudiced them in the said proceedings before the magistrate. With respect, that has not in any way prejudiced them. There is nowhere in the record where the trial court shows that it has relied on that medical report in imposing sentence upon the accused. Neither have they been charged with having assaulted the complainant herein.
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The purpose for which that medical report was handed in, was merely to demonstrate to court that indeed force/assault was used upon the Sales Clerk by the accused while committing that crime of robbery. That and nothing else. Their complaint in this regard would probably hold water, had they also been charged with the offence of assault upon the complaint in the course of robbing the complainant as they did.
That would amount to a duplication of charges. That is however, not the case herein. There is no prejudice suffered by the accused herein.
There is nothing on the record which indicates that the learned magistrate was influenced in any way by the words the applicants were "off record from prison". With the greatest respect, that has no bearing/effect at all on the sentence imposed upon the accused herein and in the circumstances of
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this case. Neither has this prejudiced the applicants in anyway.
There is clearly ample, unchallenged evidence that the shop in question was broken into and some items stolen from it. In order to do that, the assailants first incapacitated the salesman who was" sleeping in that shop. They together assaulted him, fastened the hands of the salesman with a wire and covered his face with a bag.
This they did purely to make it impossible for that salesman to recognize and stop them from robbing from that shop. They further left him unattended having closed the door from outside so that the salesman could not even be able to open it before they disappeared and left that village with the stolen items.
With respect, I beg to differ with the learned defence counsel that the elements of robbery have not been proofed. All such elements have been proofed by the Crown herein.
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Force was intentionally and unlawfully used by the applicants upon the complainant in order to induce submission to the unlawful taking of stock from that shop.
The said stolen property was later, and within that month, pointed out by the applicants to the police. This was later identified, by the complainant as part of the property stolen from the shop over which he was in charge.
This evidence has not been challenged at all by the applicants.
The case of R v Gentleman 1919 CPD at page 247 has been cited in support of crown's argument on the question of pointing out of stolen property.
It was held by Seark J and Kotze J that:
"...It need not be theft at all, but the fact of possession can be used in evidence as a proof that such person was at a particular
spot where that property was, and therefore that is the man who committed the offence.71
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No other inference can be drawn by this Court from the pointing out by applicants of the property in question except that, it was the applicants who robbed from the said shop. This court has therefore come to the conclusion that the applicants were rightly convicted and sentenced; proceedings are accordingly confirmed as being in accordance with real and substantial justice.
Applicants' application is dismissed.
M. MAHASE
ACTING JUDGE
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